Clearly, Schmidt’s thesis isn’t one that Viacom subscribes to — yet. But some stats sent over to us by the folks at Hitwise show that Viacom’s websites are losing more traffic to YouTube than they are gaining — a trend Hitwise attributes to the ease of viewing on YouTube vs. Viacom’s less friendly sites.

Seems to us that after letting the old lion roar a bit, YouTube should call Viacom’s bluff and let it see how well Colbert and the Daily Show do without their “free” advertising outlet. Since online video these days is YouTube and not much else, in the end Viacom really has little choice but to make a deal.

These days, nothing online is truly viral video until it lands on YouTube, which is perhaps why CBS and NBC have already made baby steps in the direction Schmidt talked about. But Viacom’s shot across the bow won’t be the last big legal challenge the GooTubers face; waiting in the legal wings are licensers in Europe, along with some friends from Fox, who made a smaller, more targeted legal swipe at YouTube last month. Call it negotiating, old-school style.

Listening to Schmidt on the conference call last week, the partnering plan sounded a bit arrogant — like, “well this stuff is going to get out there anyway so you may as well partner with us and get some cash for it.” We’re sure legally he’s on sounder ground than that. But Mark Cuban also has a beef with YouTube’s you-tell-us enforcement scheme, and even proposes a novel test (upload porn to test GooTube filters) whose success we sadly don’t have time to assess right now.

Still, YouTube’s success means that Viacom and others will probably come to terms, since YouTube might be doing a better job of promoting their shows online than the owners are. Hitwise’s research director LeeAnn Prescott offers the following analysis:

Viacom’s cable network sites may be losing more traffic to YouTube than they are gaining, although YouTube serves a wide distribution vehicle for their content, particularly in the case of the Daily Show and the Colbert Report. Because their own sites are not as user-friendly and do not have the established community of YouTube, it seems they are not being used for watching clips of shows.

So it may be a crime, and a felony, but at the right price, it’s also probably a good marketing partnership. Now it’s up to the lawyers to find out what that price is.